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What Compassionate Release?

Federal sentencing law has been indefensibly harsh for a generation, but in theory it has contained a safety valve called compassionate release. The 1984 Sentencing Reform Act gives federal courts the power to reduce sentences of federal prisoners for “extraordinary and compelling reasons,” like a terminal illness.

In practice, though, the Bureau of Prisons and the Justice Department, which oversees the bureau, have not just failed to make use of this humane and practical program, but have crippled it. That is the disturbing and well-substantiated conclusion of a new report by Human Rights Watch and Families Against Mandatory Minimums.

From 1992 through this November, a period in which the population of federal prisons almost tripled from around 80,000 to close to 220,000 inmates, the bureau released 492 prisoners under this program. This is a mere two dozen or so on average each year, and the number has so far not surpassed 37. The percentage of prisoners released has shrunk from tiny to microscopic.

When the 1984 law was passed, the Senate Judiciary Committee said compassionate release was intended for “the unusual case in which the defendant’s circumstances are so changed, such as by terminal illness, that it would be inequitable to continue the confinement of the prisoner.” The Bureau of Prisons was to be responsible for petitioning a court on a prisoner’s behalf, and the court was tasked with balancing a proposal for release against the potential risk to public safety of freeing the prisoner.

The United States Sentencing Commission has identified several extraordinary and compelling reasons that could justify compassionate release: terminal illness, a permanent physical or mental condition, impairment due to old age, the death or incapacitation of a family member who has been solely responsible for the care of the prisoner’s minor children.

But as things have turned out, the human rights report says, virtually the only ground the bureau accepts for compassionate release is a terminal illness with up to a year of life expectancy. To make matters worse, even when the prisoner meets its excessively strict tests, the bureau itself decides whether the prisoner should be set free — in effect usurping discretionary powers that Congress awarded the courts.

The report offers some sound remedies. Congress should modify the law to give prisoners themselves the right to seek compassionate release from a court. Congress should require the bureau to publish all program data, including the number of requests denied and why. And Congress should reaffirm the role of the courts as final arbiter.

Most important, the bureau must tell prisoners about the option for release, which it does not do now. It must quickly process all requests (again, something it does not do), and it must fulfill its duty to recommend the release of any prisoner who medical staff, social workers and others working in federal prisons believe has compelling reasons to leave prison early.

A version of this editorial appears in print on December 9, 2012, on page SR10 of the New York edition with the headline: What Compassionate Release?. Today's Paper|Subscribe